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SETTLEMENT AGREEMENTTHIS AGREEMENT is entered into on theday of, 2007, by andamong, Debra L. Miller, in her capacity as the Secretary of Transportation for the State of Kansas("KDOT"), Westgate, L.C., a Kansas limited liability company ("Westgate"), and The City ofLawrence, Kansas, a municipal corporation ("City").WHEREAS, KDOT instituted eminent domain action for improvement of U.S. 40/6th Streetin Lawrence, Kansas in a case entitled Debra L. Miller, in her capacity as the Secretary ofTransportation for the State of Kansas v. Diamond Head Limited Partnership, etal, Case No. 03C 311, in the District Court of Douglas County, Kansas; andWHEREAS, Westgate is the owner of real property located near Wakarusa Drive onU.S.40/6* Street, Lawrence, Kansas, which is legally described as:Lots 1 and 2 of Westgate Place No. 3, all in the Cityof Lawrence, Douglas County, Kansas.A portion of which was acquired by KDOT in the above-captioned condemnation case.Westgate filed an appeal of its Court Appointed Appraisers award in Case No. 04 C 214, in theDistrict Court of Douglas County, Kansas ("the Westgate case"); andWHEREAS, the Westgate case involved questions of the condemnation by KDOT of a"permanent easement for public and utility purposes", its use and its impact on Westgate's buildingand parking setbacks under the Code of the City of Lawrence, Kansas; andWHEREAS, the Westgate case was tried to a jury, judgment granted and that judgment iscurrently on appeal to the Kansas Supreme Court in Case No. 05-95225-S; andWHEREAS, KDOT and Westgate each wish to settle all issues involved in the Westgate caseand its appeal, Kansas Supreme Court Case No. 05-95225-S; and

WHEREAS, City is a participant with KDOT in the U.S.40/6th Street improvement projectpursuant to a System Enhancement Agreement No. 23 K-6880-01, and City joins in this SettlementAgreement solely as it relates to (1) its formal ratification of Exhibit 1 hereto; (2) the revisions of thefinal development plans of Westgate's property located near the Southeast corner of U. S.40/6* Streetand Wakarusa Drive; and (3) the representations contained in paragraph 10 of this Agreement.NOW THEREFORE, KDOT, Westgate, and City, each agree that it will act in good faithto implement the terms of this Agreement in a timely fashion and each acknowledges that time is ofthe essence of this Agreement and each further agrees as follows:1.Prior to February 1, 2007 and upon approval of the revised final development plansdescribed hereafter, KDOT will pay to Westgate the unpaid portion of the judgmentgranted by the trial court in Douglas County District Court, Case No. 04 C 214, inthe amount of 317,412.00, plus judgment interest from the date of acquisition,February 5, 2004. Westgate shall deliver an executed satisfaction of judgment toKDOT's counsel in exchange for payment of this amount.2.Within fifteen (15) days after the last of the designated signatures appears on thisAgreement, KDOT will submit for review by Westgate two revised final developmentplans for each of the two lots owned by Westgate within Westgate Place No. 3. Therevised final development plans will conform to the following specifications:(i)The revised final development plans shall show the repeal of the 50foot green space easement along U. S. 40/6th Street and all adjustmentsof the peripheral boundaries along U.S. 40/6* Street and WakarusaDrive, pursuant to City Ordinances numbered 7948, 7949 and 8004;

(ii)The revised final development plans shall indicate that KDOT'spermanent easements for public and utility purposes do not allow itsuse for any roadway purposes on the Westgate properties;(iii)The revised final development plans shall contain a note or notesindicating that the revised final development plans may be amended bythe property owner under the Code of the City of Lawrence, Kansas;(iv)The revised final development plans shall contain a note or notes thatindicate each of the Westgate properties fully comply with all setbackrequirements as established by the Code of the City of Lawrence,Kansas;(v)The revised final development plans shall show all of KDOT'spermanent easements for public and utility purposes; and(vi)The revised final development plans shall show the existing signagethat was excluded from the KDOT taking of its permanent easementson the Westgate properties.3.Westgate may object to the revised final development plans only upon reasonablegrounds related to the terms of this Agreement or the already approved andfiledfinaldevelopment plans for each lot. Westgate shall have three (3) business days afterreceipt to approve or object to the revised final development plans.4.Within three (3) days of the approval of the revised final development plans byWestgate, KDOT will submit the revised final development plans, at its own expense,3

to the Lawrence-Douglas County Metropolitan Planning Department for approval bythe City and for filing by the City at the Douglas County, Kansas Register of Deeds.5.So long as the revised final development plans comply with the Code of the City ofLawrence, Kansas, the City shall approve andfilethe revised final development planswith the Douglas County, Kansas Register of Deeds. It shall be KDOT's exclusiveresponsibility to ensure that the revisedfinaldevelopment plans comply with the Codeof the City of Lawrence, Kansas. In the event the City fails to approve and file bothof the revised final development plans for any reason, other than failure to complywith the Code of the City of Lawrence, Kansas; then KDOT and Westgate agree tostipulate that the City's failure to approve or file the revised final development plansshall be admissible into evidence in any subsequent court hearing.6.Prior to February 1, 2007 and upon approval and filing of the revised finaldevelopment plans, KDOT will dismiss with prejudice its appeal of the case DebraL.Miller, in her capacity as the Secretary of Transportation for the State of Kansas v.Westgate, LC, Kansas Supreme Court Case No. 05-95225-S.7.KDOT agrees that if the use of its permanent easements require digging up ordisturbing in any way Westgate's existing landscaping, trees, irrigation lines, utilities,sidewalks, signs, or anything else, that KDOT will repair or replace the landscaping,trees, irrigation lines, utilities, sidewalks, signs, or anything else.8.On or before February 1, 2007, KDOT shall file the fully executed partial release ofeasement in the form of Exhibit 2, and it attachments, with the Douglas County,Kansas Register of Deeds.4

KDOT hereby releases any right it may have acquired to use the permanent public andutility easement for roadways on the Westgate property. KDOT agrees that itsprimary purposes for the permanent public and utility easements acquired on theWestgate properties is for utilities, sidewalks and roadway signage. KDOT willconstruct no roadway within the permanent easements for public and utility purposeswithout acquiring the additional right to do so by negotiation with the landowners orby eminent domain. KDOT excluded from the permanent easements it acquired the"Westgate Shopping Center" and "Dillons" monument signs located within thepermanent easements it acquired.So far as any obligations to Westgate, the participation of the City in this Agreementis only as to its agreement that time is of the essence of this Agreement and itsexercise of good faith in the timely implementation of the terms of this Agreement,including (1) its ratification of Exhibit 1 hereto; (2) its approval and filing of therevised final development plans with the Douglas County, Kansas Register of Deedsno later than January 30, 2007; and (3) its representation that there is no need toreplat the properties because the KDOT revisedfinaldevelopment plans will illustratethe location of the KDOT permanent easement, the elimination of the 50-foot greenspace easement and the adjustments to the peripheral setbacks on this property. Thesetbacks will be measured from the exterior property lines which were not modifiedby the KDOT acquisition.5

11.All parties shall execute three original copies of this Agreement, so that each party hasone fully executed original in its possession.THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK

KANSAS DEPARTMENT OFTRANSPORTATION (KDOT):By:Debra L. Miller, in her capacity as theSecretary of Transportation for the State ofKansasACKNOWLEDGMENTSTATE OF KANSASCOUNTY OF SHAWNEE)) ss:)This instrument was acknowledged before me on theday of January, 2007 byDEBRA L. MILLER, in her capacity as the Secretary of the Kansas Department ofTransportation on behalf of whom this Settlement Agreement was executed.SUBSCRIBED AND SWORN to before me thisday ofNotary PublicMy Appointment Expires:7, 2007.

CITY OF LAWRENCE, KANSAS: amunicipal corporationBy:.Mike Amyx, MayorCity of Lawrence, KansasACKNOWLEDGMENTSTATE OF KANSAS)) ss:COUNTY OF DOUGLAS)This instrument was acknowledged before me on theday of January, 2007 by MIKEAMYX, in his capacity as the Mayor of the City of Lawrence, a Kansas municipal corporation onbehalf of whom this Settlement Agreement was executed.SUBSCRIBED AND SWORN to before me thisday ofNotary PublicMy Appointment Expires:s2007.

WESTGATE, L.C., a Kansas limited liabilitycompany W VBy:Timothy B. Fritzel, Managing Member ofWestgate, L.C.ACKNOWLEDGMENTSTATE OF KANSAS)) ss:COUNTY OF DOUGLAS)This instrument was acknowledged before me on the j day of January 2007 byTIMOTHY B. FRITZEL, in his capacity as the Managing Member of Westgate, L.C, a Kansaslimited liability company on behalf of whom this Settlement Agreement was executed.SUBSCRIBED AND SWORN to before me this %fi day of N AJUuQ- Kp, 2007VWJJUU?SUZANNE MILLS3i i f i a p Notary Public - State of KansasMy Appt. Expires 1 - D - f c nub!ic ,Notary PubuvMy Appointment Expires: 1 g ) - 1l)\*0

EXHIBIT 1SIXTH AND MASSACHUSETTS STREET P.O. BOX 708LAWRENCE, KANSAS 66044-0708 FAX (785) 832-3160 PHONE (785) 832-3150December 19, 2006Eldon ShieldsGates, Biles, Shields & Ryan, P.A.10990 Quivira, Suite 200Overland Park, KS 66210-1284RE:KDOT v. Northland, LC and Domino, LC andKDOT v. Westgate, LCDear Eldon:You have indicated that as part of the settlement agreement with Westgate, Northland andDomino, KDOT has agreed to be responsible for preparing revised Final Development Plans sothat they will note that the properties are currently in compliance with the setback requirementsof the City and also that the Final Development Plans are modifiable. In discussing this with you,I have indicated that I believe those revisions are minor and the revised Final Development Planscan be administratively approved by the Planning Director.You have also asked me to consider whether there is a requirement to replat these properties forcompliance with the City Code and specifically, with respect to conformance of the properties tothe required peripheral setback along both Wakarusa Drive and W. 6th Street. I have reviewedthe approved Final Plat of Westgate Place No. 3 and the relevant city code provisions. In myopinion, there is no need to replat the property. The revised Final Development Plans willillustrate the location of the KDOT permanent easement. The peripheral setback is measuredfrom the exterior property lines of planned unit developments and the KDOT acquisition does notmodify those exterior property lines in any way. The peripheral setback is required to be shownon the Final Development Plans and, as I understand, will be shown on the revised FinalDevelopment Plans.Please let me know if you have additional questions regarding the planning process.Sincerely,( Sheila M. StogsdilInterim Planning DirectorC:David Corliss, City ManagerJohn Miller, Staff Attorney